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2022 DIGILAW 1721 (GUJ)

Ravi Nileshbhai Sagpariya v. State Of Gujarat

2022-12-08

GITA GOPI

body2022
ORDER : 1. The application is under Section 439 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘the Code’) for cancellation of bail and for quashing and setting aside of the order dated 07.01.2021 passed by the learned 15th Additional Sessions Judge, Rajkot in Criminal Miscellaneous Application No.2611 of 2020 whereby the learned Sessions Judge was pleased to allow the regular bail of the present respondent No.2. The impugned order shows that regular bail was granted in connection with the First Information Report bearing C.R. No.11208002202063 of 2020 dated 19.12.2020 registered with Aaji Dam Police Station, Rajkot City for the offences punishable under Sections 307, 326, 325, 324, 323, 506(2), 504, 143, 147, 148 and 149 of the Indian Penal Code and under Section 135(1) of the Gujarat Police Act. 2. Learned Advocate for the applicant Mr. K.S. Chandrani submits that the son of the deceased (first Informant) is the de-facto complainant and that prior to filing of the charge-sheet, the respondent No.2 was released on regular bail by the learned Sessions Judge on the ground that he was not present at the scene of offence and was at Civil Hospital, Rajkot and thereafter, at Naklank Hotel, Kalawad Road, Rajkot. It is further submitted that the plea which has been raised by the respondent No.2 at the stage of bail ought not to have been considered by the learned Sessions Judge since the investigation was still proceeding and the reliance on the plea of alibi for granting bail in a heinous offence which is imprisonment for life has led to grant of bail and the same is illegal and erroneous and deserves to be quashed and set aside. It is also submitted that the plea of alibi raised by the accused cannot be accepted simply on the words of the accused without there being any concrete evidence in this regard and thus, reliance placed by the learned Sessions Judge in appreciating the same to grant bail has led to an unjust and unfair order leading to miscarriage of justice. 3. Learned Advocate Mr. 3. Learned Advocate Mr. K.S. Chandrani submitted that the bail application preferred by the co-accused before and after the filing of the charge-sheet came to be rejected by the learned Sessions Judge and hence, the order granting bail to the respondent No.2 is contrary to the observations made in the orders rejecting the bail of the co-accused and therefore, the impugned order deserves to be quashed and set aside. It is further submitted that there are specific allegations in the First Information Report qua the respondent No.2 that he had caused injuries to the deceased with a stick and the same has been corroborated by the injured witnesses as well as the eye witnesses who state about the presence of the respondent No.2 at the place of offence and therefore, the order passed by the learned Judge is contrary to the investigation carried out since the charge-sheet has been filed against the respondent No.2 without any Report under Section 169 of the Code and therefore, the bail granted is required to be cancelled. 4. Further, exploring the facts of the case, it is submitted that the deceased was beaten with iron pipe, stick and other weapons by the respondent No.2 and others and therefore, the deceased suffered multiple grievous injuries all over the body and because of the injuries, he was under treatment from 19.12.2020 to 28.12.2020 as an indoor patient and thereafter, died on 18.01.2021. It is further submitted that during the course of investigation, the investigating officer recorded the further statement of the injured victims. One of the injured victims – Mayurbhai had disclosed the role of the respondent No.2. It is also submitted that the final opinion, as to the cause of the death of the deceased as given by the F.S.L., is on account of the injuries sustained by the deceased all over the body. One of the injured victims – Mayurbhai had disclosed the role of the respondent No.2. It is also submitted that the final opinion, as to the cause of the death of the deceased as given by the F.S.L., is on account of the injuries sustained by the deceased all over the body. Thus, it is submitted that the cause of death is directly attributed to the injuries caused by the respondent No.2 and other co-accused which was in connivance on basis of pre-planned meeting and where there was a conspiracy hatched to do away with the deceased for the purpose of grabbing the property and for receiving illegal financial gains from the deceased as just before two days prior to the incident, an First Information Report was lodged with Aji Dam Police Station, Rajkot by Jignesh Lakhabhai Gondaliya who happens to be the brother of Rajeshbhai Gondaliya and brother-in-law of the deceased wherein also the accused person had assaulted the first informant and had tried to grab the property and in that First Information Report too, the respondent No.2 was arraigned as an accused. Thus, on that ground, it is submitted that the learned Judge ought not to have granted the bail. 5. Learned Advocate Mr. K.S. Chandrani also submitted that the learned Sessions Judge ought to have considered that the conspiracy was hatched to carry out the assault and the meeting was held on 18.12.2020 at the place of Prabhatbhai Kungasiya which is reflected in the statement of witness – Savjibhai Karshanbhai Algotar. It is further submitted that the the Maruti Suzuki Swift Car used for the commission of the offence was procured from the co-accused – Jaysukh Jogasva and it bore the Registration No.GJ-03-FD-8059 which was removed by the accused as it was seen by the deceased and other witnesses being an unnumbered car which according to learned Advocate Mr. Chandrani suggests that it was a pre-planned assault with an intention to grab the property of Jignesh Lakhabhai Gondaliya and for that purpose, a bogus Sale Deed was prepared and on that basis, the accused claimed to be the owner of the property and had threatened the last owner and others with a malafide intention to grab the property subsequently the assault was carried out which has resulted into the death of the persons. It is further submitted that Sections 302 and 120(B) of the Indian Penal Code were invoked by the police on the death of the injured and the charge-sheet came to be filed under those Sections. 6. Learned Advocate Mr. K.S. Chandrani has relied upon the decisions of the Hon’ble Apex Court in the cases of Kanwar Singh Meena v. State of Rajasthan and Another reported in 2012 Law Suit (SC) 697, Mahipal v. Rajesh Kumar and Others reported in AIR 2020 SC 670 and Brijmani Devi v. Pappu Kumar and Another reported in 2021 Law Suit (SC) 869 and submitted that if the order itself is illegal, unjust and unfair based on the arbitrary exercise of discretion releasing the accused involved in a gruesome crime on bail should not be allowed to stand and such orders need to be corrected as it sets a bad precedent and that the order refusing or granting bail does not furnish the reason then there is presumption of non-application of mind and whereby the intervention of the Court would become necessary. Nature of seriousness of offence, the character of the evidence and the circumstances which are peculiar to the accused and incase of release, influence on the prosecution witness as well as effect on the Society, are also the factors which require consideration while granting bail and thus, submits that the order is needed to be corrected and the bad precedent is required to be quashed and set aside and the bail is to be cancelled. 7. Countering the above arguments, learned Advocate Mr. Dhruv Toliya has placed reliance on the judgment of the Hon’ble Apex Court in the case of Central Bureau of Investigation v. Amitbhai Anil Chandra Shah and Another reported in (2012) 10 SCC 545 and submitted that the consideration of bail and cancellation of bail are different and both stand on a different footing. Dhruv Toliya has placed reliance on the judgment of the Hon’ble Apex Court in the case of Central Bureau of Investigation v. Amitbhai Anil Chandra Shah and Another reported in (2012) 10 SCC 545 and submitted that the consideration of bail and cancellation of bail are different and both stand on a different footing. It is submitted that the bail once granted should not be cancelled as a matter of course where in this case, the respondent No.2 had moved the Court on the basis of the First Information Report and the learned Judge had considered the submission that at the time of commission of offence, the respondent No.2 was not at all present at the scene of offence as he was at Civil Hospital, Rajkot for his skin treatment and thereafter, had gone to Naklank Hotel and further proceeded to Jalaram Petrol Pump and for that purpose the respondent No.2 had given an application and had produced the case papers of Civil Hospital and CCTV Footage of the other place. It is further submitted that the learned Sessions Judge has placed his reliance on the documents on record which substantiates the case of the applicant accused that he was not present at the scene of offence, thus was considered for bail. It is further submitted that it is not wrong for the learned Judge to consider the documents by the accused as there is no such rule that only the investigation papers are to be considered, as the evidence suggests that the accused was not present at the place of offence. It is also submitted that the bail was granted on the basis of the First Information Report, while the cancellation is prayed by referring to Sections 302 and 120B of the Indian Penal Code and the reasons given for rejection of the bail application of the co-accused, contending that the same reasons qua the co-accused, are required to be adopted in the present accused – respondent No.2’s case, for cancellation of the bail order. Learned Advocate Mr. Learned Advocate Mr. Toliya has relied upon the judgment dated 11.11.2022 of the Hon’ble Apex Court in the case of Bhuri Bai v. The State of Andhra Pradesh in Criminal Appeal No.1972 of 2022 arising out of SLP (Criminal) No.9508 of 2022 to submit that it is not the case of the prosecution that the respondent No.2 has misused the liberty in any way or violated the conditions laid down. 8. Having considered the arguments of both the sides and perusing the impugned order which granted bail to the respondent No.2 under Sections 307 of the Indian Penal Code, the order was based on the observations that the applicant accused was not present at the scene of offence and he was at Civil Hospital for treatment of his skin condition and thereafter was at Naklank Hotel, Kalawad Road, Rajkot. To support that say, the case papers of Civil Hospital, Rajkot and CCTV Footage were produced and the affidavit of one – Sulabhia Zariya was also produced on record to support the contention that the respondent No.2 was at the Civil Hospital and another place alongwith him, and further that the complainant and other persons were discharged from the hospital and were advised to take rest for about 10-12 weeks by the Doctor of Medisurge Hospital. As per the First Information Report, the complainant and one – Mayurbhai were moved to Civil Hospital and were admitted in the emergency ward of Civil Hospital but no history or case papers were produced on record by the investigating officer and nothing has been stated about the treatment in Civil Hospital and thus, the learned Sessions Judge decided to grant bail on prima-facie record available, without entering into the merits of the case. As per the say of learned Advocate Mr. Dhruv Toliya that the father of the respondent No.2 had given an application on 10.03.2021 to the police to investigate the case on the basis of the alibi and that the bail was granted considering the facts and circumstances of the case and record which clarified that the accused was not present at the scene of offence, which weighed with the Court for granting the bail. It is further submitted that though Sections 302 and 120B of the Indian Penal Code have been invoked in the matter, while the police has not deemed it fit to arrest the present applicant. It is further submitted that though Sections 302 and 120B of the Indian Penal Code have been invoked in the matter, while the police has not deemed it fit to arrest the present applicant. Further, as per the charge-sheet, the complainant was admitted in Medisurge Hospital from 19.12.2020 to 28.12.2020 and after the treatment, they were advised to take rest and during that period, the complainant – Nileshbhai Ramjibhai Sagpariya had pain in his stomach on 18.01.2021 and for further treatment, he was taken for examination where he was declared dead. Hence, the inquest panchnama was conducted and a Report was thereafter, sought from the forensic Department, which is a case as per learned Advocate Mr. Toliya doubtful to even invoke the provisions of Section 302 of the Indian Penal Code. 9. The learned Judge while granting bail has taken into consideration the plea of alibi raised by way of documentary evidence of Civil Hospital and CCTV Footage alongwith the Affidavit of a person who was accompanying the respondent No.2 to grant bail to the respondent No.2. The facts of the case suggest that after long treatment and after discharge from the hospital, the deceased was advised to take rest. The First Information Report is dated 19.12.2020 and the death of the deceased occurred on 18.01.2021 which according to the charge-sheet was due to the pain in the stomach, while after the alleged incident, the deceased was taken to MediSurge Hospital for treatment from where he was discharged on 28.12.2020. 10. Taking this fact into consideration, and even when the bail came to be granted on the basis of the First Information Report, this Court does not find any reason to interfere with the bail order and hence, this application stands rejected. Notice is discharged.